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September 17, 2015, Trial News

Rose Catherine Hernandez

Consumers have sued Bentley, BMW, Ford, Honda, Hyundai, Kia, Mercedes-Benz, Nissan, Toyota, and Volkswagen in federal court in California, alleging that a flaw in the design of keyless fob ignition systems has led to 13 deaths from carbon monoxide poisoning. The plaintiffs estimate that at least 5 million cars are affected and have not been recalled.

Consumers have sued Bentley, BMW, Ford, Honda, Hyundai, Kia, Mercedes-Benz, Nissan, Toyota, and Volkswagen in federal court in California, alleging that a flaw in the design of keyless fob ignition systems has led to 13 deaths from carbon monoxide poisoning. The plaintiffs estimate that at least 5 million cars are affected and have not been recalled (Draeger v. Toyota Motor Sales U.S.A., No. 2:15-CV-06491 (C.D. Cal. filed Aug. 26, 2015)).

The plaintiffs, who seek class-action status, claim that the lack of an automatic shut-off system is a design flaw in the keyless ignition systems. In addition to compensatory and punitive damages, they are seeking an injunction requiring automakers to install an automatic shut-off feature on all existing and future cars sold with keyless fob ignitions.

At least 13 people have died nationwide due to carbon monoxide poisoning from cars that were mistakenly left running in enclosed spaces. Keyless fob ignition systems operate by sensing the presence of owner-specific electronic fobs that allow drivers to start cars remotely or, once they are inside the car, by simply pressing a button. The plaintiffs claim that reasonable drivers can misunderstand that keyless ignition fobs do not turn their vehicles’ engines off in the same way they turn them on. Although current federal regulations require cars that use a traditional key system to shut down when the key is removed from the ignition, no such rule exists for cars equipped with keyless fob ignition systems. These cars can continue to run even after the driver has parked and walked away. Beyond the lack of an automatic shut-off feature, the plaintiffs contend that there is no warning to drivers about the risk for carbon monoxide poisoning in their vehicles’ operating manuals and that the cars lack audible warnings to alert drivers that the engine is still running.

The plaintiffs claim that the auto industry has known of the defect and its consequences for years. Since 2009, consumers have filed more than two dozen complaints with the National Highway Traffic Safety Administration (NHTSA) regarding problems with keyless fob ignition systems. Yet, the plaintiffs contend the automakers have not responded to these complaints.

In 2011, NHTSA posted a public notice in the Federal Register that said cars equipped with keyless ignition systems pose a “clear safety problem,” citing carbon monoxide poisoning as a significant concern. The agency proposed new safety rules at the time, including requiring a louder alert if the fob is removed and the car is on. NHTSA noted that the total costs of its proposal would be small and less than $500,000 annually for the auto industry. To date, these proposals have not been implemented. However, NHTSA is expected to announce a final rule in February 2016.

The plaintiffs also point out that automatic shut-off technology is now present in some of the automakers’ newer models. Many automakers have filed for patents for new technologies designed to address this problem, including Ford and General Motors, which applied for an automatic shut-off device several years ago. The plaintiffs contend that the auto manufacturers could have averted the deaths by installing the same inexpensive automatic turn-off feature used in mass-produced coffeemakers.

“General Motors and Ford filed patents for a system that fixes the very problem and says that’s what the new device addresses. In fact, in March 2015, GM recalled 2011-2013 Volts to fix this problem,” noted Steve Berman of Seattle, one of the plaintiffs’ lead attorneys.

“This case is a bit unique because here, we have one car company recalling this one model for to fix the keyless fob ignition system but not recalling others with the exact same system. In addition, there were two companies filing patents on solutions for the problem but not recalling their cars either.” Berman said. “In my view, the patent applications contain an admission of the problem and an admission of the fix.”

“We brought this action to protect millions of consumers nationwide, who purchased vehicles with this deadly safety defect,” said Martis Alex of New York City, another of the plaintiffs’ lead counsel. “When we filed our complaint, we knew of at least 13 deaths, but since filing, we have learned of more deaths and near-deaths caused by carbon monoxide poisoning stemming from these keyless ignition systems.”

“The truth is every one of these deaths and serious injuries could have been prevented by auto manufacturers installing a simple auto-off mechanism to turn the car engine off when the driver leaves the car, unaware that the engine is still running,” Alex said. She also noted that “some manufacturers have installed engine auto-off in some, but not all, of their latest car models—take for example the Ford 2014 and 2015 Lincoln MKS. They now have engine auto-off, while for consumers who purchased other Ford 2014–2015 models, which are not equipped with the same safety feature, those drivers and their families are vulnerable to the risk of carbon monoxide poisoning, serious injury, and death.”

Alex noted that the plaintiffs are using the civil justice system “to prevent more deaths and serious injuries by requiring the automakers to implement the simple software solution that will save lives.”

Berman agreed, adding that, “the justice system oftentimes is the system that protects consumers and their families by bringing defects to light.”